Donning and Doffing Statistical Evidence

For years, workers at Tyson Foods had to spend their own, unpaid time putting on equipment necessary for work. The time they spent "donning and doffing" their clothes and equipment could have amounted to overtime if Tyson kept track of it. Except, Tyson didn't keep any records on it.

So when workers brought a class action lawsuit under the Fair Labor Standards Act, they had to resort to statitistics to show that they were owed back pay.

But Tyson had a good point: how can statistics showing that the average overtime for a group be used as evidence of what an individual is owed? Just because George worked 10 hours of overtime, that does not mean that Phyllis did the same, Tyson essentially argued.

So when the U.S. Supreme Court released its opinion in Tyson v. Bouaphakeothis week, you could hear the plaintiffs' bar heave a sigh of relief. At last, the Supreme Court had finally issued a ruling that actually helps plaintiffs!

But a closer looks shows that the ruling is narrowly drawn and will be limited in use.

First, as Justice Elena Kagan emphasized during oral argument, this should apply to Fair Labor Standards Act types of employment law cases. So it is not a general rule to be applied everywhere.

Second - and, again, as Justice Kagan made clear during oral argument - statistical evidence may only be used when the employer failed to record the time that is in dispute. The Supreme Court has held in other cases (such asAnderson v. Mt. Clemons Pottery) that when employers violate their legal duty to keep records, the employees have no other way to prove their loss. If the Court had ruled otherwise, it would have given companies an enormous incentive to chuck a lot of record keeping.

The takeaway is, if you are a company, you should make sure to keep all the records you are legally obliged to keep. Especially in employment cases. And if you are a plaintiff, if the defendant is in any way at fault for the fact that direct proof is impossible, cases such as this can be valuable ammunition.